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December 28, 2015

S. Ct. Civ. No. 2015-0053

SBRMCOA, LLC, et al. v. Beachside Associates, LLC

An appeal and cross-appeal are dismissed for lack of appellate jurisdiction. The Superior Court’s order which affirmed an arbitrator’s award concerning payments and interest owed in a dispute arising from operation of a wastewater facility, but vacated several other aspects of the arbitration award after concluding that the arbitrator exceeded his powers, also remanded the matter to the arbitrator for clarification of the terms of a five-year payment plan with respect to the monies owed. A prior order noting that the Superior Court’s judgment appeared interlocutory—in that it ordered a remand to the arbitrator—directed the parties to brief the issue of this Court’s appellate jurisdiction. Upon consideration thereof, the June 8, 2015 judgment is not final and appealable within the meaning of 4 V.I.C. § 32(a), and it has previously been held that the interlocutory appeal provisions of 9 U.S.C. § 16 do does not preempt 4 V.I.C. § 32(a) or otherwise apply to Virgin Islands courts. Nor does the “practical finality” doctrine warrant exercise of jurisdiction in this circumstance because the determination the Superior Court ordered on remand to the arbitrator—establishing the terms of the five-year payment plan provided for in the original arbitration award—cannot be characterized as “purely ministerial.” Consequently this Court lacks jurisdiction to review the non-final order below, and the parties’ appeal and cross-appeal are dismissed for lack of appellate jurisdiction. A pending stay motion is denied as moot.

Orders denying motions to reduce bail are reviewable under the collateral order doctrine and are final orders for purposes of review. However, as applicable to the present defendant’s appeal from an oral ruling of the Magistrate Division of the Superior Court denying his motion to reduce bail, 4 V.I.C. § 125 provides that “[a]ll appeals from the Magistrate Division . . . must be filed in the Superior Court or to the Supreme Court, if appealable to the Supreme Court as provided by law.” The Virgin Islands Legislature modeled the statutes establishing the Magistrate Division after its federal counterpart set forth in Title 28 of the United States Code, and cases construing and applying those statutes have held that bail and detention orders issued by a federal magistrate must first be appealed to, and reviewed by, a federal district judge before a the appellate court will obtain jurisdiction to review the ruling. It is presumed that when the Legislature creates a statute it is aware of the long-standing procedures and practices of the courts, and it is difficult to see how the Legislature could have envisioned a different procedure being implemented in the Virgin Islands. Accordingly, a Superior Court judge must review a magistrate’s ruling regarding a motion to reduce bail before it can be appealed to this Court. Because no such review occurred in this case, the Supreme Court lacks jurisdiction over the defendant’s appeal, which is dismissed for that reason.

Pursuant to responses to a show-cause order by this Court, the motion filed by a Georgia attorney, J.M. Raffauf, seeking pro hac vice admission to the Virgin Islands Bar, is denied. A member of the Virgin Islands Bar, Eszart A. Wynter, Sr., and Raffauf conventionally filed a brief and joint appendix, ostensibly on behalf of their client, Ricardo Mitchell. The cover of both documents identified Raffauf as the “pro hac vice Attorney for Appellant/Petitioner,” and both documents were jointly signed by both Wynter and Raffauf, who again identified himself as “pro hac vice Attorney for Appellant/Petitioner.” However, Raffauf had never been granted pro hac vice admission to appear as counsel in this matter. Section 443 of title 4 of the Virgin Islands Code, which defines the unauthorized practice of law, prohibits “the preparation and/or filing of pleadings or other legal papers” by an unlicensed attorney, and Virgin Islands Supreme Court Rule 211.5.5(b)(2) prohibits holding oneself out as a member of the Virgin Islands Bar when one is not. In addition, prior case precedent and Virgin Islands Supreme Court Rule 204(i) clearly indicate that no member of the Virgin Islands Bar—whether regularly admitted, specially admitted, or admitted pro hac vice—“may exercise any of the privileges or responsibilities of that position” until and unless he or she is administered the Oath or Affirmation of Admission, which was not administered to Raffauf in this matter. Because Raffauf engaged in the unauthorized practice of law by signing court documents and holding himself out as a “pro hac vice Attorney,” he and Wynter are referred to the Office of Disciplinary Counsel, the Board on Professional Responsibility, and the Virgin Islands Attorney General for the purpose of taking any additional action which they may find appropriate. No such referral is made with respect to another member of the Virgin Islands Bar, Yohana M. Manning, whose claim that he was unaware of Raffauf’s unauthorized practice of law is corroborated by the fact that the responses of Raffauf and Wynter make no mention of Manning, as well as the fact that the pro hac vice motion and other documents did not include him on the certificate of service. Accordingly, the order to show cause is discharged as to Manning. The motion to admit Raffauf pro hac vice to the Virgin Islands Bar is denied. The abeyance under this Court’s August 18, 2015 order is lifted, the brief and joint appendix that were prepared and signed by Raffauf are rejected, and Wynter and Manning are directed to advise this Court within the next 21 days as to which of them is authorized to represent Mitchell in this appeal.

Upon filing by the Office of Disciplinary Counsel of a certified copy of an order issued by the District of Columbia Court of Appeals disbarring a member of the Virgin Islands Bar based upon her plea of guilty to a serious federal crime in a proceeding before the United States District Court for the Northern District of California, the attorney has failed to respond to an order of this Court to show cause why reciprocal discipline should not be imposed in the Virgin Islands for this misconduct. Pursuant to this Court’s exclusive jurisdiction to regulate the legal profession and attorney discipline system in the Virgin Islands, as provided in 4 V.I.C. § 32(e) and the Virgin Islands Rules for Attorney Disciplinary Enforcement, the identical discipline of disbarment is warranted in this case. In addition to the attorney’s failure to respond to this Court’s show cause order after proper notice, the record reflects that she entered a guilty plea in the California federal criminal proceedings and consented to disbarment in the District of Columbia courts. Under these circumstances it will be presumed that the other jurisdiction’s sanction was appropriate. Accordingly, the attorney is disbarred from the practice of law in the Virgin Islands, effective immediately.

In a child custody dispute, the mother’s emergency motion for a stay pending appeal of a Superior Court order directing her to make arrangements for her minor son to relocate to Florida to live with his father, no later than August 10, 2015, is granted under the balancing of the equities standard. Ordinarily, in determining whether a litigant is entitled to a stay pending appeal the factors considered are: (1) whether the litigant has made a strong showing of likely success on the merits; (2) whether the litigant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies. While the first factor is ordinarily the most important, a stay motion may be granted upon a showing of a substantial case on the merits when the balance of equities, as determined by the other three factors, clearly favors a stay. Here, as mother has argued, the child would face a hardship if forced to relocate to Florida and then abruptly relocate to the Virgin Islands if the Court ultimately decides to reverse the Superior Court’s order, and this hardship greatly outweighs the hardship the father may experience from delayed assumption of sole custody of the child. The mother has also established a substantial case on the merits so as to justify a stay, as the Superior Court’s own findings appear to indicate that it may have impermissibly weighed the rights and interests of the father rather than the child, by considering that father never had primary custody of the child previously, a fact that appears wholly irrelevant to analysis of the best interests of the child. The motion for a stay pending appeal of the Superior Court’s July 22, 2015 order is granted.

Considering the appellant’s motion for a stay pending appeal requesting that this Court temporarily enjoin enforcement of a February 4, 2015 Superior Court opinion and order directing him to pay child support in accordance with a March 11, 2010 separation agreement he entered into with the appellee, his former wife, the Court holds that the appellant has not met his burden to show that he is entitled to such relief. To determine whether a litigant is entitled to a stay or injunction pending appeal, the Court considers: (1) whether the litigant has made a strong showing that he is likely to succeed on the merits; (2) whether the litigant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies. The assessment of all four factors heavily weighs against granting a stay pending appeal in this case. Accordingly, the appellant’s motion to stay the Superior Court’s February 4, 2015 order pending this appeal is denied.

The Superior Court’s March 17, 2014 opinion and order is reversed with respect to the dismissal of the plaintiff’s Virgin Islands Wrongful Discharge Act claim, and its July 19, 2014 order denying reconsideration is vacated. To state a claim under 24 V.I.C. § 76 a plaintiff need only plead that the defendant was his employer and wrongfully discharged him. A plaintiff is not required to anticipate in the complaint any affirmative defenses the defendant might raise in its answer, such as grounds for discharge permissible under the statute. Applying this precedent, the present complaint sufficiently stated a claim for wrongful discharge, and the Superior Court therefore erred in dismissing that cause of action. The case is remanded to the Superior Court for proceedings consistent with this opinion.